civ pro flashcards

Question 1

Personal jurisdiction requires that the defendant be _____ to the forum state’s jurisdiction, and that the defendant be ______.

Answer 1

amenable; served with proper notice

Question 2

Amenability to personal jurisdiction is governed by the ______, subject to the limits of the ______ of the United States Constitution

Answer 2

forum state’s law; due process clause

Question 3

Pennoyer v. Neff described three bases for state jurisdiction over persons and things. They are

_____: jurisdiction over the person
_____: jurisdiction over interests in property
_____: jurisdiction over seized property, where plaintiff’s claim is unrelated to the seized property

Answer 3

In personam
in rem
quasi in rem

Question 4

Pennoyer based its jurisdictional formula on ____ over persons and property within its borders

Answer 4

state power

Question 5

Under Pennoyer’s in personam jurisdiction, a judgment in plaintiff’s favor
—would be _____ in all states
—for the ____ of damages
—may be ____ until fully collected

Answer 5

binding; full amount; enforced repeatedly

Question 6

Under Pennoyer’s in rem jurisdiction, a judgment in favor of plaintiff
—affects ____ in a res (both ____ and ____ to the lawsuit)
—does not result in a _____
— does not require ____ outside the forum

Answer 6

everyone’s interests; parties and non parties

money judgment

enforcement

Question 7

Under Pennoyer’s quasi in rem jurisdiction, a judgment in plaintiff’s favor: 
—entitles plaintiff to the \_\_\_\_
—is not a \_\_\_\_\_
—is not \_\_\_\_
—may not be \_\_\_\_\_
—may not be \_\_\_\_\_

Answer 7

property attached for jurisdiction

personal judgment

enforceable against any other property

enforced more than once

enforced outside the forum

Question 8

Another type of jurisdiction not discussed in Pennoyer is ____, which involves the state’s authority to adjudicate such matters as divorce, adoption, citizenship and mental competence.

Answer 8

status

Question 9

____ altered Pennoyer’s rule for personal jurisdiction, replacing the concept of ____ with the new standards of ___ and ___ provided by the “minimum contacts test.”

Answer 9

International Shoe Co. v. Washington

state power

reasonableness

fairness

Question 10

The current test for amenability, following International Shoe and other cases, does not require the minimum contacts test if the defendant satisfies any one of the four “traditional” bases for in personam jurisdiction. Those bases are:
\_\_\_\_\_ in the forum state 
\_\_\_\_\_\_ to jurisdiction 
\_\_\_\_\_ of objection to jurisdiction 
\_\_\_\_\_ in the forum when served

Answer 10

Residence

Consent

Waiver

Physical Presence

Question 11

Consent to jurisdiction has two forms, ____ consent and ____ consent. ______ are an example of express consent, and ____are an example of implied consent.

Answer 11

express
implied
forum selection clause
non-resident motorist statutes

Question 12

If none of the traditional bases are present, a state may only exercise in personam jurisdiction over defendants who have minimum contacts with the state. The two categories of minimum contacts are ____ and _____.

Answer 12

specific jurisdiction

general jurisdiction

Question 13

______ relates to the nonresident defendant’s contacts with the forum state. _____ is where the lawsuit is unrelated to the nonresident defendant’s contacts with the forum state.

Answer 13

specific jurisdiction

general jurisdiction

Question 14

Specific jurisdiction has four contacts tests, which are that the defendant

a. ______ itself of the benefits and protections of forum law;
b. should have ____ that its activity would subject it to jurisdiction in the forum state;
c. could _____ being haled into court in the forum state;
d. placed its product in the _____ and could foresee that it would be used in the forum state.

Answer 14

purposely availed

foreseen

reasonably anticipate

stream of commerce

Question 15

General jurisdiction has one contact test, which is that it has_____ with the forum state.

Answer 15

continuous and systematic contacts

Question 16

If the defendant has no contacts with the forum (and does not meet one of the four traditional bases of jurisdiction), then there is ___ over that defendant. If, on the other hand, defendant does have specific or general contacts, then the court must consider the ______ test. This is a ____ test with five factors, which are:

—______
—_____ interest in convenient and effective relief
—_____
—the ____ in furthering fundamental social policies
– _____ in effective resolution of controversies

Answer 16

no personal jurisdiction

fair play and substantial justice test

balancing

• burden on the defendant
• plaintiff’s
• the forum state’s interest
• the shared interests of several states
• judicial system’s interest

Question 17

The due process requirement for notice to defendant is stated in Mullane v. Central Hanover. Notice is constitutionally sufficient if it is “____, under all circumstances, to apprise___ parties of the pendency of the action, and afford them an _____ and _____.”

Answer 17

reasonably calculated
interested
opportunity to appear
present objections

Question 18

An abbreviated version of the Mullane notice rule is that ____ requires ___ and an ____.

Answer 18

due process clause
notice
opportunity to be heard

Question 19

Which rule of the Federal Rules of Civil Procedure deals with initially notifying the defendant of the lawsuit?

Answer 19

Rule 4

Question 20

Under Fed. R. Civ. P. 4, the two primary methods for service of process on a competent adult are:

a. ____ to defendant;
b. leaving copies at ____ with a person of _____.

Answer 20

personal delivery

defendant’s residence; suitable age and discretion

Question 21

In most cases, the federal method of service on defendants outside the district is by the ___ statute of the state in which the federal court sits.

Answer 21

long arm

Question 22

The purposes of venue rules are:

(a) _____ to defendant
(b) ______ of caseload within the forum state

Answer 22

fairness

geographic allocation

Question 23

The federal statute for general venue provisions is _____

Answer 23

28 USC 1391

Question 24

The purpose of forum non conveniens is ____ based on fairness and convenience.

Answer 24

to move cases from one forum to another

Question 25

Subject matter jurisdiction refers to the court’s authority to adjudicate based on the ____ and in some cases, _____

Answer 25

type of case

dollar amount in controversy

Question 26

Federal courts have subject matter jurisdiction over two types of cases:

Answer 26

federal question

diversity of citizenship

Question 27

The statute dealing with general federal question jurisdiction is ___. It provides that federal courts have jurisdiction over any ____.

Answer 27

28 USC 1331

case or controversy arising under the Constitution, laws, or treaties of the United States.

Question 28

In addition to the general federal question provisions in 28 U.S.C. § 1331, there are specific statutes on federal question jurisdiction, including actions against (name three):

Answer 28

patents
civil rights
consuls

Question 29

Diversity jurisdiction is covered by ___. That statute provides that federal courts have subject matter jurisdiction over claims between ____, or between ____ and ____, where the amount in controversy _____.

Answer 29

28 U.S.C. § 1332
citizens of different states
state citizens
foreign citizens
exceeds $75,000

Question 30

Although the Constitution requires only ____ diversity, 28 U.S.C. § 1332 requires ___ diversity. This means that all plaintiffs must have different citizenship than all defendants.

Answer 30

partial

complete

Question 31

For diversity purposes, a corporation has two citizenships, which are:

a. _______
b. ________

Answer 31

state of incorporation

principal place of business

Question 32

For diversity purposes, partnerships have the citizenship of _____

Answer 32

all the partners

Question 33

The amount in controversy is determined by plaintiff’s ____.

Answer 33

good faith pleading

Question 34

In achieving the amount in controversy, may Plaintiff aggregate (answer “yes” or “no”):

a. all of Plaintiff’s claims against one defendant?
b. alternate theories of recovery for the same wrong? c. claims of different plaintiffs?
d. claims against different defendants?

Answer 34

Yes
No
No
No

Question 35

In some cases, a related claim that lacks diversity or federal question jurisdiction may be included. This is called _____.

Answer 35

supplemental jurisdiction

Question 36

Federal courts traditionally abstain from ____, _____, and ____.

Answer 36

family law
probate
state criminal proceedings

Question 37

If plaintiff has filed his action in state court, and jurisdiction is proper in federal court, defendant may remove the case to federal court. This is done by filing a ____ in federal court, attaching a copy of _____ and ____ to the state court and all parties.

Answer 37

Notice of Removal
all state court pleadings
giving notice

Question 38

If there is a _____ defect in the removal, the case must be remanded to state court no matter when the objection is made

Answer 38

jurisdictional

Question 39

If there is a _______ defect in the removal, the case must be remanded to state court if a ______

Answer 39

procedural

proper and timely objection is filed

Question 40

State court subject matter jurisdiction is governed by

Answer 40

state law

Question 41

In state courts, subject matter jurisdiction is designated by _____ and/or _____.

Answer 41

type of case

dollar amount

Question 42

In Texas, state district courts have ____ over all claims of ___ or more in controversy.

Answer 42

general jurisdiction

$500

Question 43

Federal courts have ___ jurisdiction over patent claims. Federal and state court share _____ jurisdiction over _____.

Answer 43

exclusive
concurrent
federal civil rights actions

Question 44

A court has ____ jurisdiction if it is the required forum at the beginning of the case. A court has ____ jurisdiction if it may adjudicate a case only after it has been heard in a lower court.

Answer 44

original

appellate

Question 45

A Texas state district court has ____ jurisdiction over any dispute involving $500 or more, and ___ jurisdiction over appeals from Texas state agency decisions.

Answer 45

original

appellate

Question 46

A federal district (trial) court has _____ jurisdiction over appeals from federal administrative agency decisions.

Answer 46

appellate

Question 47

The United States Supreme Court has ____ jurisdiction over disputes between states.

Answer 47

original

Question 48

The Rules of Decision Act provides that “____, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as____ in civil actions in the courts of the United States, in cases where they apply.”

Answer 48

the laws of the several states

rules of decision

Question 49

_____ interpreted the Rules of Decision Act to require federal courts to apply the ____ in cases where state law applied.

Answer 49

Swift v. Tyson

general American common law

Question 50

Erie Railroad Co. v. Tompkins reversed Swift v. Tyson, holding that when state law applies in federal court, the federal court must apply _______.

Answer 50

the law of the state in which that federal court sits

Question 51

_____ coined the “_____,” which provides that the ____ Doctrine mandates state law only where it affects substantive rights that are potentially outcome determinative.

Answer 51

Guaranty Trust v. York
outcome determinative test
Erie

Question 52

____ modified the ____, holding that the court should ___ in the case to determine which interests were stronger. ___ further held that one factor of the balancing test is whether the state law in question is _____ outcome determinative. Thus, ___ gives more importance to state laws that absolutely change the outcome of the case.

Answer 52

Byrd v. Blue Ridge
outcome determinative test
balance state and federal interests
Byrd
absolutely or definitively 
Byrd

Question 53

To determine the content of state law in federal court, the Erie Doctrine directs that the court look to ___ and ___. Persuasive (but not binding) authority is found in ___ and ____. Erie also allows courts to make an ___ as to state law.

Answer 53

state statutes
decisions from the state's highest court
lower state appellate courts
federal court opinions on state law
educated guess

Question 54

The Rules Enabling Act (28 U.S.C. § 2072) provides the United States Supreme Court may enact the _____, provided that no rule may ____ any substantive right.

Answer 54

Federal Rules of Civil Procedure

abridge, enlarge, or modify

Question 55

The most prominent Rules Enabling case is ____, which resolves the conflict between the Rules Enabling Act and the ____.

Answer 55

Hanna v. Plumer

Erie Doctrine

Question 56

___ v. Plumer also provides the current version of the ___ Doctrine, holding that if there is no ____ on point, then apply the Byrd test subject to the _____.

Answer 56

Hanna
Erie
Federal Rule of Civil Procedure
twin aims of Erie

Question 57

Choice of law is the process by which courts determine which _____ law will be applied in a case.

Answer 57

state’s or nation’s

Question 58

Choice of law rules may be ___ or ____.

Answer 58

statutory

common law

Question 59

One example of a choice of law statute is Texas Civil Practice and Remedies Code § 71.031, which provides that in wrongful death actions the law of the state ____ will govern.

Answer 59

where the death occurred

Question 60

One example of a common law choice of law rule is the Texas case of Duncan v. Cessna, which holds that Texas courts will use the “_____” to choose the governing law. This rule applies except where there is a _____, or where the action is based on contract that contains a _____.

Answer 60

most significant relationship test
statutory choice of law rule
valid choice of law clause

Question 61

In federal courts, choice of law for non-federal-question cases is controlled by the choice of law rules of ____

Answer 61

the state in which the federal court sits

Question 62

In federal court, Plaintiff’s initial pleading is called a ____. It must contain:

a. an allegation of ___
b. a short and plain ___ showing that the pleader is _____
c. a demand for _____

Answer 62

complaint

a. subject matter jurisdiction
b. statement of the claim; entitled to relief
c. judgment

Question 63

In federal court, defendant’s answer must respond to each paragraph of plaintiff’s complaint with one of the following:

a. _____
b. _____
c. statement that defendant ___

Answer 63

admission
denial
lacks sufficient knowledge to respond

Question 64

In addition to the foregoing, defendant may plead _____. If defendant fails to plead these, they are ____. Name three examples:

Answer 64

affirmative defenses
waived

contributory negligence
assumption of the risk
fraud

Question 65

F.R.C.P. 11 requires that an attorney or pro se party sign each pleading, which certifies that he or she has made a ___, and that the pleading is (1) not being presented for any _______; (2) ____ or a ____ for the extension, modification, or reversal of existing law or the establishment of new law; (3) supported by ____, or will likely be after a reasonable opportunity for discovery. _____ must be warranted on the evidence or based on a reasonable lack of information or belief.

Answer 65

reasonable inquiry
improper purpose
warranted by existing law
nonfrivolous argument
evidence
fact denials

Question 66

If plaintiff’s initial pleading is so vague and ambiguous that defendant cannot reasonably be expected to respond, defendant may file a _____ under F.R.C.P. 12(e). This must be filed ____ the Answer.

Answer 66

Motion for More Definite Statement

before

Question 67

Defendant may use a ___ under F.R.C.P. 12(f) to challenge any insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter.

Answer 67

Motion to Strike

Question 68

Defendant should always challenge plaintiff’s Complaint by a _____, under F.R.C.P. 12(b)(6). This allows the court to test the ____ of plaintiff’s claim.

Answer 68

Motion to Dismiss for Failure to State a Claim

legal sufficiency

Question 69

Defendant may challenge _____ at any time. Defendant must challenge ____ and ____ at the first opportunity or waive them.

Answer 69

subject matter jurisdiction
personal jurisdiction
venue

Question 70

Two types of counterclaim are ____ and ____. A ____ counterclaim is one related to plaintiff’s claim. If it is not asserted, it is ____.

Answer 70

compulsory
permissive
compulsory
waived

Question 71

A third party claim is one brought by a defendant against a ____. It is based on ____ liability. ____ may also bring a third party claim in defense of a counterclaim.

Answer 71

new party
derivative
plaintiff

Question 72

Pleadings may be amended to add new ____, and new ____ or ____.

Answer 72

factual allegations
claims
causes of action

Question 73

If a pleading adds a new claim that is barred by the statute of limitations, that new claim will be allowed if it is related to the original claim and if the new claim would have been timely if filed with the original claim. This is the “_____” in Fed. R. Civ. P. 15(c).

Answer 73

doctrine of relation back

Question 74

the statute of limitations has run if the ____ in Rule 15(c) is satisfied.

Answer 74

balancing test

Question 75

If plaintiff presents evidence on an unpleaded claim during trial and defendant fails to object, that unpleaded claim will be valid if the court grants plaintiff’s ____.

Answer 75

Motion for Trial Amendment

Question 76

One exception to the liberal federal pleading rule (“short plain statement of the claim”) is that allegations of ___ must be plead with particularity.

Answer 76

fraud

Question 77

Until recently, most state courts used code pleading, which required plaintiff to plead _____ relating to every element of his claim.

Answer 77

ultimate facts

Question 78

Many states have abandoned code pleading, replacing it with ____ pleading requirements based on the ______.

Answer 78

notice

Federal Rules of Civil Procedure

Question 79

Texas still requires plaintiff to plead ____. However, it may not be necessary in each case to plead every ____.

Answer 79

causes of action

element

Question 80

Many state courts still permit a _____, with which defendant challenges the ____ of plaintiff’s claim. This is similar to F.R.C.P. 12(b)(6) Motion to Dismiss for Failure to State a Claim. Texas does not permit a demurrer.

Answer 80

demurrer

legal sufficiency

Question 81

F.R.C.P. 13(a) requires defendant to assert any opposing claim against plaintiff that ________ that is the subject matter of plaintiff’s claim. This is known as a _____. If defendant fails to assert such a claim, he is _____ from raising the same claim in a later lawsuit.

Answer 81

arises out of the same transaction or occurrence
compulsory counterclaim
barred

Question 82

Exceptions to the requirement of asserting the claims discussed in the preceding question include:

a. where defendant _____ of plaintiff’s claims prior to filing an Answer.
b. where the counterclaim has not ____ or ___.
c. where the counterclaim requires an additional party over whom the court _____.
d. where the counterclaim is the subject of _____
e. where plaintiff’s action is not based on ____ over defendant (i.e. an ____ action).

Answer 82

a. wins a dismissal
b. arisen; matured
c. lacks personal jurisdiction
d. another pending action
e. personal jurisdiction; in rem

Question 83

Permissive joinder allows any party to join ____ against ____.

Answer 83

unrelated claims

existing parties

Question 84

In spite of the liberal rules for permissive joinder, all crossclaims and third party claims must be ____ to the plaintiff’s claim. However, once a party has properly asserted a crossclaim or third party claim, that party may join an ____ claim .

Answer 84

related

unrelated

Question 85

Compulsory parties are those who must be joined if possible. F.R.C.P. 19 addresses this issue in two parts:

a. Rule 19(a) identifies ____, who must be joined if feasible;
b. Rule 19(b) addresses what must happen when _____.

Answer 85

required parties

joinder is not feasible

Question 86

F.R.C.P. 20 governs permissive joinder of parties. It permits multiple plaintiffs to join in one lawsuit if

a. each plaintiff asserts any right to relief arising out of the same ____, _____, or series of transactions or occurrences, ____
b. “any question of _____ common to all these persons will arise in the same action.”

Rule 20 also permits ____ to _____ if they meet this test.

Answer 86

multiple plaintiff’s

a. same transaction, occurrence, AND
b. law or fact

one or more plaintiffs
join multiple defendants

Question 87

Two other requirements for naming parties to a lawsuit are:

a. _____
b. ____

Answer 87

Real Party in Interest

Capacity

Question 88

Procedural devices for adding multiple parties include:

a.
b.
c.
d.
e.

Answer 88

a. Impleader, or Third Party Action
b. Interpleader
c. Intervention
d. Class Action
e. Shareholders’ Derivative Suit

Question 89

The scope of discovery, both in Texas and federal courts, is all matters “_____” that are “________.”

Answer 89

not privileged

reasonably calculated to lead to the discovery of admissible evidence

Question 90

The forms of discovery are: (7)

Answer 90

—interrogatories
—requests to produce or inspect 
—subpoenas duces tecum 
—oral depositions 
—written depositions 
—physical and mental examinations 
—requests for admission

Question 91

Privileges shield information from discovery, such as:
—_______
—________
—_______

Discovery exemptions have a similar effect. These include
—__________
—________ (in Texas state courts)

Answer 91

attorney-client privilege
spousal privilege
doctor-patient privilege

attorney work product exemption
client investigatory exemption

Question 92

The privileges and exemptions listed above must be raised before the deadline for responding to that discovery request or they are _____.

Answer 92

waived

Question 93

In addition to waiver, the privileges and exemptions may have exceptions that _____.

Answer 93

permit or require disclosure

Question 94

Devices for dismissal include:

a. ____ Dismissal
b. ____ Dismissal for failure to prose cute, failure to comply with court rules, or in a non-jury trial, failure to prove a claim or defense.
c. Dismissal for _____

Answer 94

Voluntary
Involuntary
Failure to State a Claim

Question 95

A Motion for Judgment on the Pleadings may be filed by _____. In deciding the motion, the court will look only to the _____ to determine if that pleading has stated a ____ or ____.

Answer 95

either plaintiff or defendant
nonmovant’s pleadings
claim
defense

Question 96

F.R.C.P. 56 provides that for summary judgment, the ___ is on the ____ to show that:

a. there is no _____, and
b. movant is _____.

Answer 96

burden
movant
genuine issue of material fact
entitled to judgment as a matter of law

Question 97

One major difference between a motion for summary judgment and motions under Rules 12(b)(6) [failure to state a claim] and 12(c) [judgment on the pleadings] is that a summary judgment motion may include _____. In addition, the court is entitled to examine other evidence in the _____, such as discovery on file with the court.

Answer 97

evidence

court record

Question 98

For summary judgment under Rule 56(b) (in favor of the party not having the burden of proof at trial), the movant may meet the first part of the burden (no dispute of material fact) by:

a. ____
b. ____ portions of nonmovant’s essential fact allegations (Adickes)
c. pointing to the record, after a ____, and alleging that non movant lacks sufficient evidence to support an ____ of her case, upon which nonmovant has the____. (Celotex)

Answer 98

a. assuming all of nonmovant’s fact allegations to be true
b. negating
c. reasonable time for discovery; essential element; burden of proof at trial

Question 99

For summary judgment under Rule 56(a) (in favor of the party bearing the burden of proof at trial), the movant must meet the burden of proof by ____ of the claim or defense

Answer 99

offering evidence to establish each element

Question 100

Once the movant has met the initial burden under Rule 56(a) or 56(b), the burden shifts to____, who may defeat the motion for summary judgment by:

a. _____, or
b. ______.

Answer 100

nonmovant

a. creating a fact dispute
b. showing that the law does not entitle movant to judgment

Question 101

In deciding the motion for summary judgment, the court must view the evidence in the ______.

Answer 101

light most favorable to the nonmovant

Question 102

To create a fact dispute that will prevent summary judgment, nonmovant must offer opposing evidence on which _____. If reasonable minds could not differ, then there is no fact dispute, and the judge may render summary judgment.

Answer 102

reasonable minds could differ

Question 103

Anderson v. Liberty Lobby emphasizes that the question before the court on a motion for summary judgment is whether there is ____ to withstand a motion for ____, that is, sufficient evidence to send the case to a jury.

Answer 103

sufficient evidence

directed verdict

Question 104

If a party lacks evidence to respond to a motion for summary judgment, that party may seek ____ under Rule 56(f).

Answer 104

additional time

Question 105

In federal court, the trial issues of law and fact are governed by a _____. In state courts that do not use a Pretrial Order, the issues of fact and law are governed by the _____.

Answer 105

PreTrial Order

latest pleadings

Question 106

The process of questioning prospective jurors is called ____.

Answer 106

voir dire

Question 107

There are two kinds of challenges to prospective jurors:

____ are based on the court’s ruling that reasonable cause exists to excuse that person from jury service based on a possibility of prejudice against one of the parties, or some other bias in the case.

____ allow the parties a limited number of “strikes” to excuse prospective jurors for no stated reason.

Answer 107

Challenges for cause

Peremptory challenges

Question 108

Asking the court to order all witnesses other than parties to leave the room is known as ____.

Answer 108

invoking the rule

Question 109

A defendant may move for the ____ if he has the burden of proof on all the remaining issues.

Answer 109

right to open and close

Question 110

Under the Seventh Amendment to the United States Constitution, all parties have a right to trial by jury in ___ exceeding ____ in controversy.

Answer 110

cases at common law

$20

Question 111

Parties have no constitutional right to trial by jury in ___ cases. However, the states may grant the right to jury trial in equity cases.

Answer 111

equity

Question 112

The right to jury trial is presumed to exist under a federal statute unless that statute _____ the right.

Answer 112

expressly excludes

Question 113

If a party fails to request a jury within the time allowed by ____, the right to jury trial is ___.

Answer 113

forum law

waived

Question 114

After all evidence and arguments have been presented, the judge describes the applicable law to the jury in ____. If the judge instructs the jury incorrectly on an issue of law, this is _____ even though it applies to the jury’s function.

Answer 114

jury instructions

appealable

Question 115

If a jury is not requested, the court conducts a non-jury trial in which the judge becomes the _____

Answer 115

trier of law and fact

Question 116

As of December 1, 1991, the Federal Rules of Civil Procedure were amended so that “directed verdict” and “judgment notwithstanding the verdict” are both known as “____.”

Answer 116

judgment as matter of law

Question 117

In a jury trial, at the close of plaintiff’s evidence, defendant may move for a _____ (the old directed verdict) under Fed. R. Civ. P. 50(a). The judge may grant it if, viewing the evidence in the _____, a reasonable jury could not find for plaintiff.

Answer 117

judgment as a matter of law

light most favorable to the plaintiff

Question 118

The judge should ____ the motion for directed verdict if: a. a ____ could find in plaintiff’s favor, or

b. the judge wishes to let the case proceed and consider the question later.

Answer 118

deny

reasonable jury

Question 119

If the motion for judgment as a matter of law (or directed verdict) is denied, defendant presents his case. At the close of defendant’s evidence, ____ may move for judgment as a matter of law, which may be granted if, looking at all the evidence favorable to the ____, and only the unquestionable evidence in ____ favor, a reasonable jury could only find for movant.

Answer 119

plaintiff and defendant
nonmovant
movant’s

Question 120

After the jury has returned its verdict, the losing party may move for _____ (the old judgment notwithstanding the verdict, or JNOV) under Fed. R. Civ. P. 50(b) anytime within___days after entry of judgment. However, movant must have filed a motion for _____ during the trial as a prerequisite.

Answer 120

judgment as a matter of law
28
judgment as a matter of law

Question 121

After trial, the losing party may file a Motion for New Trial within twenty-eight (28) days after entry of Judgment. The trial judge may grant a new trial on any of the following grounds:
(4)

Answer 121

28

—trial error
—newly discovered evidence
—misconduct
—result contrary to the great weight of the evidence

Question 122

The Court of Appeals may reverse the trial judge’s granting of a Motion for New Trial only if there was ____ to support the granting of a new trial.

Answer 122

no evidence

Question 123

Courts may grant a new trial, conditioned on remittitur or additur. ____ orders a new trial unless plaintiff accepts a lesser amount of damages. ____ orders a new trial unless defendant agrees to pay extra damages. Federal law prohibits ____ as a violation of the right to jury trial.

Answer 123

remittitur
additur
additur

Question 124

A new trial may be granted for newly discovered evidence if the following conditions are met:
— the new evidence was discovered _____
— the new evidence was not discoverable by ____ prior to the first trial
—the new evidence is not ____
—the new evidence will _____

Answer 124

after the first trial
reasonable diligence
merely cumulative
probably produce a new result

Question 125

An exception to the “reasonable diligence” requirement in the prior question is that even if the new evidence was discoverable by reasonable diligence, a new trial will be granted if to do otherwise would be a ________.

Answer 125

grave miscarriage of justice

Question 126

Under F.R.C.P. 60(a), a party may correct ____ and other ____ in a judgment. Under F.R.C.P. 60(b), a party may ask for a new trial based on ______.

Answer 126

clerical mistakes
inadvertent errors
newly discovered evidence or fraud

Question 127

A party may also challenge a final judgment by ____ alleging _____ or ____.

Answer 127

filing a new action
newly discovered evidence
fraud

Question 128

Thus there are three methods for challenging a judgment based on newly discovered evidence or fraud:

a. (rule 59)
b. (rule 60)
c.

One principle difference between these three is the ____ allowed for filing.

Answer 128

a. Motion for New Trial
b. Motion for Relief from Judgment
c. A New Lawsuit

time

Question 129

Appellate courts primarily review ____. In order to receive appellate review, there must be plain error that was ____ by a ____.

Answer 129

questions of law

properly preserved

timely objection

Question 130

Appellant may preserve error by objecting at the time of the error and making known to the court:

a. the ____, or the _____, and
b. the ____ therefor.

Answer 130

a. action desired; objection to the action

b. grounds

Question 131

Appellate courts may also review the jury’s decision, but only as to the ______, which is also a question of ____.

Answer 131

sufficiency of the evidence

law

Question 132

____ courts may review the trial judge’s Findings of Fact in a _____. The standard of review is ____.

Answer 132

Appellate
nonjury trial
clearly erroneous

Question 133

The four procedures for appearing before the Supreme Court are:

a. _____ 28 U.S.C. §§ 1254(1), 1257
b. ______ 28 U.S.C. § 1254(2)
c. _____ 28 U.S.C. § 1253
d. _____ U.S. Const., Art. III 28 U.S.C. § 1251

Answer 133

a. Writ of Certiorari
b. Certification
c. Direct Appeal from decisions of three judge courts
d. Original Jurisdiction

Question 134

Preclusion is the doctrine that limits the relitigation of issues and claims. The two kinds of preclusion are:

Answer 134

claim preclusion

issue preclusion

Question 135

Another name for preclusion is “_______.”

Answer 135

res judicata

Question 136

Claim preclusion includes the doctrines of _____ and ___

Answer 136

merger

bar

Question 137

Merger applies to judgments for ____. It provides that a ____ judgment for plaintiff (a) prevents plaintiff from suing again, except in a collection action on the judgment, and (b) bars defendant’s defenses in an action on the judgment.’

Answer 137

Plaintiff

valid and final

Question 138

Bar applies to judgments for ____. It provides that a judgment for defendant ______ on the same claim.

Answer 138

Defendant

bars another action by plaintiff

Question 139

The-elements of claim preclusion are:

a.
b.
c.

Answer 139

a. same claim
b. same parties
c. valid and final judgment

Question 140

Claim preclusion does not apply to certain actions, including:

a. Dismissal on grounds of _____
b. _______
c. Where preclusion is ____
d. ____ courts (in some jurisdictions)

Answer 140

a. jurisdiction, venue, or party joinder
b. nonsuit without prejudice
c. denied by statute
d. small claims

Question 141

Issue preclusion is also known as

Answer 141

collateral estoppel

Question 142

Issue preclusion does not apply to whole lawsuits, but to:

a. issues of _____
b. that were ____
c. that ended in a _____,
d. where determination of that issue was ___ to the judgment, and
e. where the judgment is ____

Answer 142

a. law or fact
b. actually litigated
c. valid and final judgment
d. essential
e. binding on the party being estopped

Question 143

Issue preclusion no longer requires _____. This is also known as “offensive collateral estoppel.” It means that a person who was not a party to the first lawsuit can use the results of that action against any person who (a) was a ____ and (b) had a _______.

Answer 143

mutuality of parties

party

full and fair opportunity to litigate

Question 144

The Law of the Case Doctrine is another preclusion device that prevents relitigation of the same issues within ______ prior to final judgment.

Answer 144

the same lawsuit